Boss and worker's expletive-laden text exchange fills pages of court evidence

A worker who exchanged expletive-laden texts with his boss has been awarded more than $21,000 in lost wages and compensation for the way in which he was sacked. Photo / 123RF

A former site manager at a building removal firm who traded expletive-laden blows with his boss by text has been awarded more than $21,000 in lost wages and compensation for the way in which he was sacked.

But, the award might have been higher if Jeremy O'Neill hadn't told his boss to "get f….d".

O'Neill raised a personal grievance with the Employment Relations Authority claiming unjustified disadvantage when he was suspended, and for unjustified dismissal from Prestige Building Removals Limited, which argued the claims were without merit.

O'Neill succeeded with most of his claim, but the ERA found sufficient grounds to dismiss him for serious misconduct after he threw a metal chain used for house removals.

The slanging match central to the evidence erupted after trouble had been brewing between O'Neill and the director of the removal firm, Jason Barnes.

The two had also been friends, which the authority ultimately found contributed to what it described as an unfair process, and not what a reasonable employer might have done.

Penalties awarded to a former site manager of a building removal firm were reduced because of the part he played in the dismissal. Photo / Gary Webber 123RF

ERA member Sarah Blick said the case also demonstrated why a clear formal and documented process was required.

O'Neill began working as a site manager for the Hamilton-based company in December 2019.

A few months later the company employed someone else in a role that would free O'Neill to focus on quoting for new business and on driving so he could spend less time managing staff.

Barnes said he became concerned about the way O'Neill was treating other workers, and that he had received complaints about O'Neill's "yelling" and "aggressive behaviour".

On one occasion O'Neill was driving to Auckland with a colleague to look for housing stock when O'Neill ended up in a heated exchange over the phone with Barnes.

After a short burst of expletive-laden name-calling, O'Neill claimed that Barnes told him to "drop what you are doing and just f**k off".

Barnes said he was in a car with another person and was talking to O'Neill on speaker phone and that O'Neill became "very angry" and told him to "go f**k" himself and hung up.

O'Neill did not return to work on June 23, 2020, which turned out to be his final
day with the company.

Barnes said he sent a text message to O'Neill, suggesting he take until the end of the following week off.

In the days that followed the pair exchanged a large number of text messages, which filled two and a half pages of the Authority's written decision.

O'Neill said the text messages made it clear PBR was going to dismiss him.

A meeting soon after aimed to give O'Neill an opportunity to respond to what Barnes described as serious allegations, and also advised that disciplinary action up to summary termination may result.

O'Neill responded via his lawyer that he disputed having told Barnes to "get f****d" and attached his own written record of the conversation.

However, he later acknowledged under cross-examination that he had told Barnes to go "f**k himself" and hung up on him, but after Barnes "yelled and screamed at him".

O'Neill said allegations about his conduct with others were "outright lies", but that being "blunt and to the point" was the most effective way of keeping everyone safe.

He also said swearing was commonplace in the industry and at PBR's workplace because of the example set by Barnes.

Attempts by Open Justice to reach Barnes and O'Neill have so far been unsuccessful.

Blick ultimately found that swearing was not only tolerated but condoned within the workplace and that Barnes participated in it himself.

O'Neill's lawyer Rachel Webster said there were procedural and substantive issues with the suspension, and that it was O'Neill's view that the decision on the allegations had been predetermined.

A substantial amount of correspondence continued between the company and O'Neill before the ERA determined he had been suspended, and that it was unjustified.

The ERA said the employer did not have good reason to suspend O'Neill without giving him a proper opportunity to be heard, and that the suspension disadvantaged him in his employment.

The Authority also found O'Neill's dismissal was unjustified, for reasons around the fairness of the process, and that this "defect in the process" was not minor.

It was however satisfied that sufficient grounds existed to dismiss him
for serious misconduct in relation to his throwing the metal chain, even though O'Neill said there was no evidence that any other workers were intimidated by it.

Blick also accepted PBR's position that at no time during the disciplinary process did O'Neill take responsibility for his alleged actions, express any remorse, or provide PBR with any assurance that his behaviour would not be repeated.

"I find a fair and reasonable employer could have concluded Mr O'Neill's actions constituted serious misconduct in light of Mr O'Neill's admissions, and PBR's obligation to protect the health and safety of other workers was important.

"I find it was open to PBR to conclude summary dismissal was an appropriate outcome in the circumstances," Blick said.

She awarded O'Neill $14,563 in lost wages, $2100 compensation for unjustified disadvantage and $4900 for unjustified dismissal; the compensation being significantly less than what was sought.

Blick found a 30 per cent reduction in remedies was warranted, and that they might have been reduced further, if not for PBR's culture of condoning bad language.